[Cite as Frey v. Frey, 2015-Ohio-4622.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

HANCOCK COUNTY 

 

RICK J. FREY, 

 PLAINTIFF-APPELLEE, CASE NO. 5-15-11 

 v. 

KIMBERLY S. FREY, NKA 

KIMBERLY S. NIGH, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Hancock County Common Pleas Court 

Trial Court No. 2001-DR-287 

Judgment Reversed and Cause Remanded 

Date of Decision: November 9, 2015 

 

APPEARANCES: 

 

William E. Clark for Appellant 
Case No. 5-15-11 

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PRESTON, J. 

{¶1} Defendant-appellant, Kimberly Frey, n.k.a. Kimberly Nigh, 

(“Kimberly”), appeals the March 23, 2015 judgment entry of the Hancock County 

Court of Common Pleas, Domestic Relations Division, granting plaintiffappellee’s, Rick Frey (“Rick”), motion for a modification of Kimberly’s child 

support obligations. We reverse. 

{¶2} The facts relevant to this appeal are as follows. Kimberly and Rick 

divorced in May 2002. Frey v. Frey, 197 Ohio App.3d 273, 2011-Ohio-6012, ¶ 2 

(3d Dist.). Three children were born from the marriage—Ashley Frey (“Ashley”), 

Austin Frey (“Austin”), and Chelsea Frey (“Chelsea”) (collectively, the 

“children”). Frey v. Frey, 3d Dist. Hancock No. 5-09-11, 2009-Ohio-5275, ¶ 2. 

After a number of modifications,1

 the trial court adopted a consent entry on 

August 4, 2010 regarding Kimberly’s child support obligations: 

1. All monies held in escrow by the Child Support Enforcement 

Agency shall be released immediately to the Father, Rick Frey. 

2. The Father’s current Child Support withholding shall be 

terminated immediately. 

 

1 See Frey, 197 Ohio App.3d 273, 2011-Ohio-6012, at ¶ 2-12. 
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3. The Mother, Kimberly Nigh, shall pay a lump sum to the 

Father, Rick Frey, in the amount of $1,000.00, to be paid 

immediately. 

4. After the termination of the Father’s Child Support obligation 

and upon receipt of the lump sum herein, Mother will owe 

$9,823.00 to Father for the overpayment of Child Support. 

5. Mother shall pay child support to Father in the amount of 

$356.57 per month, effective as of January 1, 2010. In 

addition, Mother shall pay Father $72.00 per month towards the 

overpayment she received. In addition, Mother shall pay any 

processing fees in accordance with the Ohio Revised Code. All 

payments, including processing fee[s] at the legal rate shall be 

payable through the Ohio Office of Child Support. A copy of 

the Child Support calculations is attached hereto. 

6. Mother shall immediately establish an account with a financial 

institution under the jurisdiction of the court and maintain in 

that account funds sufficient to satisfy her child support 

obligation set forth herein. Mother shall provide the Hancock 

County Child Support Enforcement Agency information 

regarding the account and shall take whatever steps necessary 
Case No. 5-15-11 

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for child support payments to be automatically withdrawn from 

said account. 

7. The Mother shall be subject to seek a work order [sic]. 

8. Court costs shall be divided equally between the parties. 

(Doc. No. 284); Frey, 197 Ohio App.3d 273, 2011-Ohio-6012, at ¶ 13. 

{¶3} On December 18, 2014, Rick filed a “Motion for Modification of 

Support Obligations” requesting that the trial court order Kimberly to pay $400 in 

child support because Rick was injured in a workplace accident and cannot work 

and to pay, “instead of Medicaid,” the children’s health insurance. (Doc. No. 

328). After a hearing on February 13, 2015, the trial court filed its entry on March 

23, 2015 concluding that there was “a change of circumstance[s] * * * substantial 

enough to require modification of the prior child support amount pursuant to 

[R.C.] 3119.79.” (Doc. No. 344); (Feb. 13, 2015 Tr. at 1). The trial court ordered 

Kimberly to provide health insurance for Austin and Chelsea; “to seek full-time 

employment and report her efforts in writing to the Hancock County Child 

Support Enforcement agency”; and to pay child support in the amount of $281.08 

per month as of December 1, 2014. (Doc. No. 344). 

{¶4} Kimberly filed her notice of appeal on April 13, 2015. (Doc. No. 

347). She raises four assignments of error for our review. Because it is 

dispositive, we address only Kimberly’s first assignment of error. 
Case No. 5-15-11 

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Assignment of Error No. I 

The Trial Court Erred and Abused its Discretion When it 

Modified Appellant’s Child Support Obligation. 

{¶5} In her first assignment of error, Kimberly argues that the trial court 

abused its discretion by granting Rick’s motion to modify Kimberly’s child 

support obligations. Specifically, she argues that Rick did not provide R.C. 

3119.05(A)-quality documentation of his income to warrant a 

change-of-circumstances finding to justify modifying Kimberly’s child support 

obligations. 

{¶6} We review a trial court’s ruling on a child support modification 

request for an abuse of discretion because trial courts are vested with broad 

discretion in deciding whether to modify a child support order. Montgomery v. 

Montgomery, 3d Dist. Union No. 14-14-22, 2015-Ohio-2976, ¶ 24, citing Brose v. 

Copeland, 3d Dist. Seneca No. 13-13-08, 2013-Ohio-3399, ¶ 11 and Pauly v. 

Pauly, 80 Ohio St.3d 386, 390 (1997). “A trial court abuses its discretion when its 

decision is contrary to law, unreasonable, not supported by the evidence, or 

grossly unsound.” Id., citing Brose at ¶ 11, citing State v. Boles, 2d Dist. 

Montgomery No. 23037, 2010-Ohio-278, ¶ 17-18. “In applying the abuse of 

discretion standard, a reviewing court may not simply substitute its own judgment 
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for that of the trial court.” Id., citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 

219 (1983). 

{¶7} R.C. 3119.79 governs the modification of child support orders and 

provides, in pertinent part: 

(A) If an obligor or obligee under a child support order requests 

that the court modify the amount of support required to be paid 

pursuant to the child support order, the court shall recalculate 

the amount of support that would be required to be paid under 

the child support order in accordance with the schedule and the 

applicable worksheet through the line establishing the actual 

annual obligation. If that amount as recalculated is more than 

ten per cent greater than or more than ten per cent less than the 

amount of child support required to be paid pursuant to the 

existing child support order, the deviation from the recalculated 

amount that would be required to be paid under the schedule 

and the applicable worksheet shall be considered by the court 

as a change of circumstance substantial enough to require a 

modification of the child support amount. 

* * * 
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(C) If the court determines that the amount of child support 

required to be paid under the child support order should be 

changed due to a substantial change of circumstances that was 

not contemplated at the time of the issuance of the original 

child support order or the last modification of the child support 

order, the court shall modify the amount of child support 

required to be paid under the child support order to comply 

with the schedule and the applicable worksheet through the line 

establishing the actual annual obligation, unless the court 

determines that the amount calculated pursuant to the basic 

child support schedule and pursuant to the applicable worksheet 

would be unjust or inappropriate and would not be in the best 

interest of the child and enters in the journal the figure, 

determination, and findings specified in section 3119.22 of the 

Revised Code. 

R.C. 3119.79(A), (C). 

{¶8} This court previously concluded that “where the original child support 

order resulted from the parties’ voluntary agreement, R.C. 3119.79(A) must be 

read in conjunction with R.C. 3119.79(C) to appropriately determine whether a 

modification of the order is proper.” Montgomery at ¶ 26, citing Adams v. Adams, 
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3d Dist. Union No. 14-13-01, 2013-Ohio-2947, ¶ 16. Therefore, because 

Kimberly and Rick voluntarily agreed that Kimberly would pay Rick $356.57 per 

month in child support under the August 4, 2010 consent judgment, the trial court 

“‘must find both (1) a [substantial] change of circumstances, and (2) that such 

change in circumstance “was not contemplated at the time of the issuance of the 

child support order.”’” Id., quoting Bonner v. Bonner, 3d Dist. Union No. 14-05-

26, 2005-Ohio-6173, ¶ 11, quoting R.C. 3119.79(C). 

{¶9} “‘A court may only modify an existing child support order if there is a 

substantial change of circumstances.’” Brose, 2013-Ohio-3399, at ¶ 12, quoting 

Green v. Tarkington, 3d Dist. Mercer No. 10-10-02, 2010-Ohio-2165, ¶ 13. “The 

requisite change in circumstances exists wherever the newly calculated ‘child 

support amount deviates from the existing order by at least ten percent.’” Id., 

quoting Green at ¶ 13 and Fox v. Fox, 3d Dist. Hancock No. 5-03-42, 2004-Ohio3344, ¶ 13 (“A difference of ten per cent from the amount of the current child 

support order constitutes a ‘change of circumstances’ that requires the court to 

modify the child support order.”). “The burden of proving a change in 

circumstances under R.C. 3119.79 rests on the party requesting the modification of 

the child support order.” Id., citing Maguire v. Maguire, 9th Dist. Summit No. 

23581, 2007-Ohio-4531, ¶ 14. 
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{¶10} “When considering whether a change in circumstances exists so as to 

merit a modified child support order, a trial court must determine each parent’s 

income.” (Emphasis sic.) Id. at ¶ 13, citing Drummer v. Drummer, 3d Dist. 

Putnam No. 12-11-10, 2012-Ohio-3064, ¶ 24. “This determination necessarily 

implicates R.C. 3119.05(A), which requires that, in child support modification 

proceedings, trial courts verify both parents’ incomes ‘by electronic means or with 

suitable documents, including, but not limited to, pay stubs, employer statements, 

receipts and expense vouchers related to self-generated income, tax returns, and all 

supporting documentation and schedules for tax returns.’” Id., quoting R.C. 

3119.05(A). To prove their current income, “‘a parent must exactly adhere to this 

requirement * * * by presenting those documents listed in R.C. 3119.05(A).’” Id., 

quoting Ornelas v. Ornelas, 12th Dist. Warren No. CA2011-08-094, 2012-Ohio4106, ¶ 23, citing Ellis v. Ellis, 7th Dist. Mahoning No. 08-MA-133, 2009-Ohio4964, ¶ 60 (“[P]ursuant to R.C. 3119.05(A) a trial court is restrained to review 

documents, not testimony, to establish income.”); Ostmann v. Ostmann, 168 Ohio 

App.3d 59, 2006-Ohio-3617, ¶ 53 (9th Dist.). 

{¶11} “Further, the failure to comply with R.C. 3119.05(A) precludes a 

movant from obtaining a modified child support order” because the “‘“[f]ailure to 

obtain the necessary financial information renders the court’s order arbitrary and 

therefore an abuse of discretion.’” Brose at ¶ 14; Montgomery, 2015-Ohio-2976, 
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at ¶ 37, quoting Basham v. Basham, 3d Dist. Allen No. 1-02-37, 2002-Ohio-4694, 

¶ 6, quoting Aiello v. Aiello, 3d Dist. Seneca No. 13-96-12, 1996 WL 517351, *2 

(Sept. 11, 1996). 

{¶12} If a change of circumstances is established, the trial court must then 

determine whether that change of circumstances was contemplated at the time of 

the issuance of the child support order. See Adams v. Adams, 3d Dist. Union No. 

14-12-03, 2012-Ohio-5131, ¶ 30, citing Bonner, 2005-Ohio-6173, at ¶ 11. 

{¶13} The trial court abused its discretion in granting Rick’s motion to 

modify Kimberly’s child support obligations because Rick failed to sustain his 

burden under R.C. 3119.79 that there is a change in circumstances related to his 

income since he did not provide any R.C. 3119.05(A)-quality evidence of his 

reduced income. Rick filed a motion requesting that the trial court modify 

Kimberly’s child support obligation because his income was reduced after he was 

injured in a workplace accident. At the hearing, Rick testified that he is unable to 

work after sustaining a workplace injury and is receiving $242 per week in 

workers’ compensation benefits. (Feb. 13, 2015 Tr. at 12). He testified that, at the 

time he entered the consent decree with Kimberly regarding her child support 

obligations, he “was making around an average of about [$]2,200 to [$]2,400 a 

month.” (Id. at 12-13). Rick testified that he did not bring any documentation of 
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his workers’ compensation benefits other than his “workers [sic] card number.” 

(Id. at 17-18). 

{¶14} The trial court concluded that there was a change of circumstances 

and modified Kimberly’s child support obligations based on Rick’s testimony that 

he was receiving $242 per week in workers’ compensation benefits as income. As 

we stated in Montgomery, “The statute and the case law interpreting it require 

more than testimony to satisfy the burden of proof.” Montgomery, 2015-Ohio2976, at ¶ 48. As such, Rick’s testimony alone is insufficient to establish a change 

of circumstances related to his income. Id. at ¶ 51, citing Basham, 2002-Ohio4694, at ¶ 7-8, Brose, 2013-Ohio-3399, at ¶ 15-17, and Ornelas, 2012-Ohio-4106, 

at ¶ 25. Because Rick’s testimony alone is insufficient to establish a change of 

circumstances related to his income, whether his income deviated by 10 percent 

from the existing child support order cannot be established. Accordingly, a 

change in circumstances cannot be established to warrant a modification of 

Kimberly’s child support obligations. Therefore, the trial court’s order modifying 

Kimberly’s child support obligations is arbitrary and an abuse of discretion. 

{¶15} Because we conclude that the trial court improperly found that there 

was a change of circumstances, we need not determine the second prong of the 

R.C. 3119.79-child-support-modification test—whether that change was 

contemplated at the time of the issuance of the child support order. 
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{¶16} Thus, we have no choice but to sustain Kimberly’s first assignment 

of error. 

Assignment of Error No. II 

The Trial Court Erred and Abused its Discretion When the 

Judge Acted as an Advocate for the Pro Se Party. 

Assignment of Error No. III 

The Trial Court Erred and Abused its Discretion When it 

Imposed on Appellant an Order to Seek Full Time Employment 

and Report Her Efforts in Writing to the Hancock County Child 

Support Enforcement Agency. 

Assignment of Error No. IV 

The Trial Court Erred and Abused its Discretion When it 

Ordered Appellant to Provide Health Insurance Without 

Assuring that it Could be Provided at a Reasonable Cost. 

{¶17} In her second, third, and fourth assignments of error, Kimberly 

argues that the trial court abused its discretion by acting as an advocate for a pro se 

party, by ordering her to seek full-time employment, and by ordering her to 

provide health insurance for Austin and Chelsea. 

{¶18} Because we determined in Kimberly’s first assignment of error that 

the trial court abused its discretion in modifying Kimberly’s child support 

obligations, Kimberly’s second, third, and fourth assignments of error are rendered 

moot, and we decline to address them. See Adams, 2013-Ohio-2947, at ¶ 21, 

citing App.R. 12(A)(1)(c). 
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{¶19} Having found error prejudicial to the appellant herein in the 

particulars assigned and argued, we reverse the judgment of the trial court and 

remand for further proceedings consistent with this opinion. 

Judgment Reversed and 

Cause Remanded 

ROGERS, P.J. and WILLAMOWSKI, J., concur. 

/jlr